July 29, 2010

Earlier this week, in honor of the 20th anniversary of the signing of the Americans With Disabilities Act (ADA) the Department of Justice released its"Final rule" on enforcement of the law.

It's a lengthy document -- and I confess to not having had time to read the whole thing due to my travel schedule, but the ruling does take aim at targeting service dogs based on the breed or type of dogs being used. Here is the text from that section (emphasis is mine):

Breed Limitations.A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds.

The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual´s home jurisdiction but is nonetheless banned by other jurisdictions. State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal´s actual behavior or history--not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety."

It makes it very clear in their ruling that breed discrimination of service dogs should not be tolerated. And the service dog issue has become a very important one recently as dogs are proving to have a very positive effect on helping people deal with certain social issues -- particularly around post traumatic stress.

This is obviously devastating news for the cities of Denver and Aurora, Colorado. Both cities are currently facing lawsuits in which three separate individuals are claiming to have their rights violated under the ADA in these cities because their service dogs are of breed types banned in these jurisdictions. Denver has already spent over $15,000 in legal defense to help them prepare for the case -- although with the recent DOJ ruling, it seems impossible that they could win the case.

Breed bans continue to be very problematic for cities because they target exactly the wrong thing - a dog's shape, not its behavior. The ruling makes it very clear that this should be the way issues surround dogs should be handled: on an individual basis not based on very broad (and inaccurate) generalizations).

Comments

and now the question:

will Denver/Aurora/Miami, etc waste their citizen's money tying themselves into knots developing regulations/procedures that conform to the ADA regs but still retain their BSLs? The law, rightly or wrongly, still forbids localities from requiring any kind of certification and requires only that the dog be "trained" to do service "work". Will these locations try to (illegally) demand some kind of proof from pit bull owners asserting that their dogs are service animals (and we know that, sadly, some people have and will violate the law by claiming service status for dogs that are not)?